The Dakota Access Pipeline (DAPL), which runs through the heart of the former Great Sioux Nation, has become the focal point for concerns over how federal agencies comply with tribal consultation responsibilities for projects that require federal approvals, permits, or licenses. The swirling controversy around DAPL permitting and construction, particularly including the U.S. Army Corps of Engineers’ (Corps) efforts to consult with the Standing Rock Sioux Tribe (Standing Rock), amply demonstrates the serious difficulties federal agencies, Native American groups, and project proponents face when seeking to comply with, or participate in, myriad consultation obligations. These consultation obligations arise under the National Environmental Policy Act of 1969 (NEPA),2the National Historic Preservation Act (NHPA),3 the Native American Graves Protection and Repatriation Act,4 the Archaeological Resources Protection Act,5 executive orders, treaties, and agency or department regulations and policy statements. This chapter examines the DAPL controversy and related events, including the Obama administration’s broad initiative to reexamine federal consultation obligations, and considers, among other lessons learned, mechanisms to improve the tribal consultation process.

Historical Background: The Great Sioux Nation

From time immemorial, the Great Sioux Nation inhabited an expansive part of the northern Great Plains, stretching from Montana and Wyoming in the west, through the Dakotas and Nebraska, and reaching as far east as Minnesota, Iowa, and Wisconsin.6Over time, the Great Sioux Nation’s rights of use and occupancy over the area to which it held aboriginal title were dramatically reduced. For example, the Great Sioux Nation ceded significant portions of its aboriginal territory to the United States in the Fort Laramie Treaties of 18517 and 1868,8 while guaranteeing the Nation and its members certain off-reservation rights, such as “the privilege of hunting, fishing, or passing over any of the tracts of country [ceded to the United States].”9Following the Fort Laramie Treaties and after the treaty-making era ended in 1871,10 Congress enacted a number of statutes shrinking the Great Sioux Reservation. Most significantly, in 1889, Congress passed legislation to carve the Great Sioux Reservation into several small reservations for Standing Rock, the Cheyenne River Sioux Tribe (Cheyenne River), and others.11 The legislation also “preserved all provisions of the Fort Laramie Treaties that were ‘not in conflict’ with the [1889 Act] . . . .”12 The eastern boundaries of the Standing Rock and Cheyenne River Reservations were identified “as being ‘the center of the main channel’ of the Missouri River.”13

In 1944, Congress enacted the Pick-Sloan Flood Control Act authorizing a comprehensive plan for the Missouri River.14 Congress also passed several statutes authorizing takings of certain tribal lands for specific projects like the construction of Oahe Dam and creation of Lake Oahe.15

Despite these land cessions and federal takings, it is clear that the successors to the Great Sioux Nation retain long-standing cultural affiliations with wide swaths of the north-central United States, as well as the off-reservation rights reserved by treaty. DAPL runs right through this territory.

[1] DAPL and the Lake Oahe Crossing

Dakota Access, LLC (Dakota Access) seeks to move crude oil by pipelines up to 30 inches in diameter from the Bakken and Three Forks fields in North Dakota to facilities in Patoka, Illinois, a roughly 1,100 mile route that traverses primarily private lands and does not cross any present-day Indian reservations. Little federal permitting was required.16 The selected route follows, where possible, existing utility corridors and pipelines and sought to avoid previously identified cultural and historical sites.17 DAPL, however, crosses federally regulated waters of the United States under the Corps’ jurisdiction at least 204 times, each of which the Corps evaluated individually.18 Importantly, DAPL also crosses the Missouri River in two locations upstream of the Standing Rock Reservation. Particularly relevant to the ongoing controversy, according to the U.S. District Court for the District of Columbia’s opinion denying Standing Rock’s motion for preliminary injunction, “[o]ne place of particular significance to the Tribe lies at the traditional confluence of the Missouri and Cannonball Rivers.”19

[2] U.S. Army Corps of Engineers’ Clean Water Act Obligations and Compliance Efforts

The multiple water crossings triggered the Corps’ jurisdiction under section 404 of the Clean Water Act (CWA),20and required Corps analysis of whether the crossings fell within the Corps’ Nationwide Permit 12 (NWP 12), which authorizes pipeline crossings of regulated waters where the activity will disturb no more than a half-acre of waters of the United States.21Under General Condition 20, applicable to NWP 12, a project developer must submit a pre-construction notification (PCN) if the proposed water crossing “might have the potential to cause effects to any historic properties. . . ,” including properties of cultural or religious importance to an Indian tribe,22and the Corps must verify the applicability of NWP 12.23

In addition to CWA § 404 and NWP 12 considerations, because DAPL crossed Corps-administered lands on the Missouri River near Lake Oahe, the project also triggered the Corps’ obligations under section 14 of the Rivers and Harbors Act of 1899, codified as 33 U.S.C. § 408 (Section 408), which authorizes the Corps to “grant permission for the alteration or permanent occupation or use of any of the [specified] public works when in the judgment of the [Corps] such occupation or use will not be injurious to the public interest and will not impair the usefulness of such work.”24 And, as emerged later, the Corps was also obligated to grant an easement to DAPL under section 28 of the Mineral Leasing Act of 1920, codified as 30 U.S.C. § 185 (Section 185).

Given the required Corps approvals, the Corps was obligated to consult with affected tribes in accordance with consultation obligations, including those under section 106 of the NHPA, codified as 54 U.S.C. § 306108 (Section 106),25even though the impacted areas were outside existing reservation boundaries.

NWP 12’s General Condition 20 requires the Corps to consult with interested tribes and determine whether water crossings could impact historical properties.26Here, following efforts by DAPL to communicate with stakeholders (including Standing Rock and other tribes), the Corps pursued its consultation responsibilities in parallel with its work on the environmental assessment (EA) required under NEPA, discussed below. According to the district court, during this Section 106 consultation process, the Corps and Dakota Access addressed and resolved the concerns and objections of Standing Rock.27 Despite the Corps’ repeated and good-faith efforts to consult with Standing Rock, however, those efforts were hamstrung due to the Tribe’s actions (or inaction).28Yet, when Standing Rock did engage in consultation on a limited basis, some of its concerns were addressed.29

[a] Environmental Assessment and Finding of No Significant Impact

In December 2015, the Corps published a 983-page draft EA prepared by Dakota Access for the water crossings in North Dakota on the Corps’ Omaha District website, followed by a public comment period. In July 2016, the Corps released the final EA and mitigated finding of no significant impact (FONSI), a 1,261-page document.30

Based on the July 2016 EA and FONSI, the Corps verified approximately 200 crossings of waters of the United States in accordance with NWP 12 and granted three Section 408 permissions, including the Section 408 permission for the Oahe Dam/Lake Oahe crossing as well as another crossing of the Missouri River upstream of Lake Oahe, at Lake Sakakawea, North Dakota.31

The final piece of the regulatory puzzle for the Corps and DAPL involves Section 185, which authorizes the grant of rights-of-way across “any Federal lands . . . by the Secretary of the Interior or appropriate agency head for pipeline purposes for the transportation of oil, natural gas, synthetic liquid or gaseous fuels, or any refined product . . . .”32 Pursuant to Section 185, for larger diameter pipelines, the Secretary or relevant agency head is required to provide the U.S. Senate Committee on Energy and Natural Resources and the House Committee on Natural Resources with advance notification of an intention to grant rights-of-way authorized under Section 185, together with detailed findings of the terms and conditions to be imposed on the right-of-way grant.33

At the time the NWP 12 verifications and Section 408 permissions were issued, the Corps had not provided the relevant House and Senate committees with the necessary notifications, and accordingly was not in a position to issue the Section 185 easement for the federal lands under which the Oahe Dam/Lake Oahe crossing would pass.

Standing Rock Litigation and Ongoing Permitting and Political Developments: A Partial History

[1] Standing Rock Sioux Tribe’s Complaint

On July 27, 2016, immediately after the Corps’ NWP 12 verifications and Section 408 permissions were issued, Standing Rock filed suit in the U.S. District Court for the District of Columbia.34 The complaint first asserted that in issuing NWP 12, the Corps failed to comply with Section 106, and “abdicated its statutory responsibility to ensure that . . . undertakings [such as DAPL] do not harm historically and culturally significant sites.”35Second, the complaint alleged that in issuing “multiple federal authorizations needed to construct the pipeline in certain designated areas along the pipeline route,” the Corps failed to comply with the CWA, NHPA, and NEPA.36

The complaint also alleged:

Since time immemorial, the Tribe’s ancestors lived on the landscape to be crossed by the DAPL. The pipeline crosses areas of great historical and cultural significance to the Tribe, the potential damage or destruction of which greatly injures the Tribe and its members. The pipeline also crosses waters of utmost cultural, spiritual, ecological, and economic significance to the Tribe and its members.37

[2] Preliminary Injunction Claims and the District Court’s Decision

A week later, Standing Rock filed a motion for preliminary injunction and a request for expedited hearing.38 Though the Tribe alleged NEPA violations in its complaint, the Tribe’s preliminary injunction application focused solely on alleged NHPA violations.39

In support of its motion for preliminary injunction, Standing Rock advanced three arguments. First, it alleged that the Corps violated the NHPA by failing to pursue Section 106 consultation obligations (1) at the time it issued NWP 12 in 2012 for nationwide use, and (2) when considering approvals for the 204 jurisdictional water crossings. The court rejected this argument, holding that the Corps engaged in Section 106 consultation prior to issuing NWP 12 in 2012, including efforts to discuss the proposed reissuance of NWP 12 and the specific water crossings with Standing Rock, but the Tribe did not accept the Corps’ invitations to consult.40

Second, the Tribe alleged that the Corps’ Section 106 consultation was too narrow and should have included consultation regarding historical properties along the entire pipeline route. According to the court, the Corps considered all of the proposed water crossings for DAPL, and made determinations whether those crossings had the potential to impact historical properties, using extensive cultural resource survey data assembled by licensed archaeologists.41 From that review, the Corps concluded that 204 jurisdictional water crossings triggered more detailed review and Section 106 consultation.42 The court observed that the Advisory Council on Historic Preservation’s (ACHP) regulations implementing Section 106 provide that consultations should be “appropriate to the scale of the undertaking and the scope of the Federal involvement.”43 The court observed that “the scope of the Corps’ involvement [here] was limited. It never the ability, after all, to regulate the entire construction of a pipeline.”44 The court rejected claims that the Corps should have conducted Section 106 consultations concerning sites remote from the jurisdictional water crossings.45 The court also rejected the Tribe’s claim that the Corps was required to consult on the impact to cultural resources along the entire pipeline route because the NHPA defines a potential impact as including the indirect effects of the permitted activity on historical properties.46 In doing so, the court relied on Corps regulations providing that the scope of the Corps’ Section 106 obligation requires analysis only of “construction activity in the federally regulated waterways—the direct effect of the undertaking—and in uplands around the federally regulated waterways—the indirect effect of the undertaking . . . .”47 The court observed that at least three U.S. Courts of Appeals have adopted comparable reasoning in the NEPA context, another “stop, look, and listen” statutory scheme.48

Third, Standing Rock asserted that the Corps failed to adequately consult with the Tribe even as to areas within the narrow geographic scope of the Corps’ regulatory authority. Referring to its lengthy chronological review of the Corps’ efforts to consult, the court concluded that “it appears that the Corps exceeded its NHPA obligations at many of the PCN sites,” and observed that “the Tribe largely refused to engage in consultations.”49

On the ultimate question, the district court concluded that the Tribe had not shown that it was likely to succeed on the merits of its claims that the Corps violated the NHPA.50 The court ruled that injunctive relief was not justified on the record before it.51

[3] Post-Preliminary Injunction Denial Aftermath: The United States’ Tribal Consultation Policy Announcement—Government-to-Government Discussions Between Native Nations and the Federal Government

On September 9, 2016, the same day the district court issued its Standing Rock opinion, the Department of the Army (Army), U.S. Department of Justice (DOJ), and U.S. Department of the Interior (DOI) issued a joint statement regarding the litigation and the district court’s decision and analysis.52 First, the joint statement announced that the Army would not authorize DAPL construction on lands “bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under [NEPA] or other federal laws.”53

Second, the joint statement stated the departments would initiate “a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects.”54The departments then invited tribes to government-to-government consultation sessions to consider potential improvements to the federal government’s consultation obligations “to better ensure meaningful tribal input into infrastructure-related reviews and decisions and the protection of tribal lands, resources, and treaty rights . . . .”55

The departments then held several meetings during which tribal leaders provided input about how to improve consultation.56

One motivation behind this initiative arises from the limited geographic scope of the Corps’ consultations in comparison to how other federal agencies comply with Section 106 consultation obligations. The myriad federal government consultation obligations, different processes, and vague standards have created consternation not only for tribes, but also for agency officials and project proponents. All may benefit from a refinement of consultation obligations.57

[4] President Donald Trump’s Election, Events During the Transition, and the January 24, 2017, Presidential Memorandum

Mr. Trump’s election as President did not deter the Obama administration’s deliberations on DAPL or efforts to improve tribal consultation processes. On November 14, 2016, the Army informed Dakota Access and Standing Rock that while a review of the Corps’ “previous decisions [demonstrated they] comported with legal requirements,” the Army “determined that additional discussion with [Standing Rock] and analysis are warranted.”58 The Army invited Standing Rock (and not Dakota Access) to engage in discussions regarding whether the Corps should grant Dakota Access the Section 185 easement necessary to construct the pipeline under Lake Oahe.59 The November 14 letter advised that construction near or under Lake Oahe would not proceed until the Army made a decision on the easement.60

On December 4, 2016, then Assistant Secretary of the Army Jo-Ellen Darcy issued a memorandum that summarized the key DAPL permitting chronology and commented on sensitive and confidential information that had been withheld from Standing Rock, including spill models, a risk assessment, a route comparison, and an analysis of environmental justice matters.61 Withholding this information hampered meaningful consultation, according to Darcy.62 The memorandum also described a December 2, 2016, meeting between the Corps, Standing Rock, and Dakota Access that facilitated discussion regarding spill risks and potential terms and conditions to mitigate those risks.63

Importantly, the memorandum announced that a decision on the Section 185 easement to authorize the crossing of Lake Oahe

merits additional analysis, more rigorous exploration and evaluation of reasonable siting alternatives, and greater public and tribal participation and comments . . . . Accordingly, the Army will not grant an easement to cross Lake Oahe at the proposed location based on the current record. The robust consideration of reasonable alternatives that I am directing, together with analysis of potential spill risk and impacts, and treaty rights, is best accomplished, in my judgment, by preparing an Environmental Impact Statement (EIS) that satisfies the accompanying procedures for broad public input and analysis.64

In light of the November 14 statements that the Corps’ previous decisions comported with legal requirements, the Darcy memorandum creates uncertainty concerning when a project proponent may reasonably rely on agency decisions thought to be final.65 Possibly to combat such concerns, Assistant Secretary Darcy justified her analysis by asserting that “the specific mandates of the Mineral Leasing Act,” among other considerations, required the further analysis.66

In another December 4 development, the DOI’s then Solicitor Hilary Tompkins released a solicitor’s opinion discussing the extent of Standing Rock and Cheyenne River treaty rights, including federally reserved water rights and off-reservation hunting and fishing rights within areas around and under Lake Oahe.67 The Solicitor opined that the Corps should consider the impacts of DAPL permitting decisions on these treaty rights.68 Somewhat mysteriously, the Solicitor’s opinion was suspended and temporarily withdrawn on February 6, 2017.69

On January 18, 2017, the Corps published a notice of intent to prepare an EIS in connection with Dakota Access’s request for an easement to cross Lake Oahe.70 Then, Mr. Trump was inaugurated as president and the tables turned.

Shortly after his inauguration on January 20, 2017, President Trump issued an executive order “Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects,”71together with two presidential memoranda, including one regarding DAPL.72 In his DAPL memorandum, President Trump stated that he “believe[s] that construction and operation of lawfully permitted pipeline infrastructure serve the national interest” and directed the Army and Corps to “review and approve in an expedited manner, to the extent permitted by law and as warranted, and with such conditions as are necessary or appropriate, requests for approvals to construct and operate the DAPL, including easements or rights-of-way to cross Federal areas under [Section 185] . . . .”73

Despite calls that the President’s DAPL memorandum violates federal law and certain treaties,74 on February 7, 2017, the Army notified members of Congress and others of its intent to grant an easement for a term of 30 years under Section 185,75 which the Corps granted on February 8, 2017.76 Back to Court: The Tribes’ New Initiatives and the Court’s Further Opinions

The Trump administration’s decision triggered substantial opposition and led Standing Rock and Cheyenne River back to the courthouse. Cheyenne River filed a motion for a temporary restraining order and a preliminary injunction on February 9, 2017.77 Cheyenne River advanced a single claim not presented specifically by either tribe in prior arguments or in their complaints: granting the Section 185 easement violates the Tribe’s rights under the federal Religious Freedom Restoration Act (RFRA).78 Specifically, Cheyenne River argued:

The Lakota people believe that the mere existence of a crude oil pipeline under the waters of Lake Oahe will desecrate those waters and render them unsuitable for use in their religious sacraments. The Lakota people believe that the pipeline correlates with a terrible Black Snake prophesied to come into the Lakota homeland and cause destruction.79

Additionally, the Tribe argued:

The Black Snake prophesy is a source of terror and existential threat in the Lakota worldview.

. . . . Lakota religious practitioners believe that the Dakota Access Pipeline . . . is the black, slippery terror described in the Black Snake prophecy. . . . If the waters of Lake Oahe are so desecrated, the Tribe and its members will be unable to exercise their religion as their Reservation lacks any other pure, natural water source.80

After considering the Tribe’s arguments, the court rejected the RFRA claim.81 The court concluded that the effort to use RFRA to support injunctive relief was barred by laches and that the Corps’ decision to grant the easement does not present a substantial burden on tribal members’ free exercise of religion rights.82 Prior to these assertions, Cheyenne River’s filings “did not state that the mere presence of oil in a pipeline under the lake’s floor would render the Tribe’s members unable to perform religious ceremonies, nor . . . mention the Black Snake.”83

With respect to the RFRA substantial burden issue, the court applied the U.S. Supreme Court’s analysis from Lyng v. Northwest Indian Cemetery Protective Ass’n,84 which the court concluded was the relevant touchstone for assessing religious freedom claims.85 In Lyng, “[t]he Supreme Court held that the incidental effect on religious exercise of a government action undertaken in furtherance of the management and use of government land, even if extreme, is not alone enough to give rise to a Free Exercise claim.”86 The court also explained why the First Amendment free exercise analysis was the appropriate analysis for RFRA claims, despite the Tribe’s arguments to the contrary.87

Following the court’s March 7, 2017, decision, Cheyenne River filed a motion for an injunction pending appeal in order to halt the flow of oil under Lake Oahe while the Tribes appealed.88 The court denied that request on March 14, 2017,89 and Cheyenne River then requested the U.S. Court of Appeals for the District of Columbia Circuit for similar relief.90 On March 18, 2017, the D.C. Circuit denied preliminary injunctive relief.91

[6] June 14, 2017, Order on Cross-Motions for Partial Summary Judgment

Following motions for partial summary judgment filed by the parties in February and March 2017, on June 14, 2017, the court issued a 91-page opinion granting in part and denying in part the Tribes’ motions and granting in part and denying in part the Corps’ and Dakota Access’s motions.92 In its opinion, the court reviewed much of the key history of the proceedings to date, adding that in their motions for partial summary judgment, the Tribes “take their third shot, this time zeroing in [on] DAPL’s environmental impact.”93 Specifically, the Tribes sought partial summary judgment principally regarding the Corps’ failure to comply with NEPA, including failures to “sufficiently consider the pipeline’s environmental effects.”94 As discussed further below, in summary, the court stated:

Although the Corps substantially complied with NEPA in many areas, the Court agrees that it did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline’s effects are likely to be highly controversial.

To remedy those violations, the Corps will have to reconsider those sections of its environmental analysis upon remand by the Court. Whether Dakota Access must cease pipeline operations during that remand presents a separate question of the appropriate remedy, which will be the subject of further briefing.95

While a detailed analysis of all issues addressed by the court is beyond the scope of this chapter, the June 14 opinion is instructive reading on a range of subjects. The court’s writing makes topics that are often interesting only to administrative law nerds accessible to all. A few points of interest relating to the focus of this chapter are addressed below.

Applying the NEPA “hard look” analysis, the court concluded that the Corps failed to consider adequately certain impacts on treaty-based hunting, fishing, and water rights arising from potential oil spills, as compared to impacts associated with pipeline construction.96 Addressing arguments that the Corps’ EA failed to adequately assess alternatives as required under NEPA, the court held that the alternatives analysis of two route options, one north of Bismarck, North Dakota, and the other the path ultimately selected, while somewhat flawed, withstood the “hard look” analysis based on the EA’s comparative analysis of impacts arising from the two routes.97

The court also addressed Standing Rock’s claims that the Corps violated standards concerning environmental justice,98 and acknowledged that, while there was no private right of action under the 1994 environmental justice executive order,99 courts do evaluate whether agencies have properly analyzed environmental justice considerations in NEPA analyses.100 The court concluded that the geographic scope of the Corps’ environmental justice analysis may have been reasonable when considering construction impacts, but not when evaluating spill impacts.101 The EA’s principal environmental justice focus on areas associated with construction and boring under Lake Oahe meant that the environmental justice analysis did not sufficiently consider downstream impacts of potential oil spills, according to the court.102 In so stating, the court considered not only downstream domestic drinking water intake systems but also the Tribes’ hunting, fishing, and subsistence gathering activities along the river.103

Allegations that the Corps violated its trust responsibilities to the Tribes also commanded the court’s attention. Rejecting those claims, the court concluded that Standing Rock’s breach of trust-like claims failed to “identify a substantive source of law that establishes specific fiduciary or other duties” that had been breached, as required by established Supreme Court precedent.104

Finally, of relevance to this chapter, the court rejected Cheyenne River’s assertion that the Corps violated NEPA’s (and related U.S. Department of Defense) tribal consultation regulatory obligations.105 Fundamentally, the court’s analysis and conclusion regarding tribal consultation matters are aligned with the court’s September 9, 2016, opinion denying Standing Rock’s motion for preliminary injunction.106 The court deferred ruling on certain other elements of Cheyenne River’s arguments, including its assertion that the Corps violated the “injurious to the public interest” element of Section 408.107 When this chapter went to press, the case remained pending before the district court on the question of the appropriate remedy associated with the remand to the Corps.

“Nuts and Bolts” of Federal Tribal Consultation Obligations

To fully understand the legal elements of the consultation controversy surrounding DAPL, including Standing Rock’s allegations of NHPA and NEPA violations, one must understand the underlying core consultation obligations of the federal government. As noted in the introduction, federal agency obligations to consult with tribes are rooted in a wide range of statutes, regulations, executive orders, and policy statements. While cataloguing these is beyond this chapter’s scope,108 two statutory schemes requiring consultation with tribes, both of which arose in the Standing Rock litigation, are addressed below. This selective review should also illustrate opportunities for improving tribal consultation.

Section 106109 requires tribal consultation and consideration of cultural resources that may be adversely affected by proposed project activities.110 Important questions arise concerning the scope of federal agency obligations to consult with tribes “that might attach religious and cultural significance” to historical or cultural properties, including traditional culturalproperties (TCP), that are located within areas potentially affected by off-reservation projects.111

The NHPA was amended in 1992 to provide, among other things, enhanced opportunities for Indian tribes to manage federal cultural resources programs on Indian lands, and to participate more actively during the planning process for projects on federal public lands.112 Under the 1992 NHPA amendments, federal agency preservation-related activities are to be “carried out in consultation with other Federal, State, and local agencies, [and] Indian tribes . . . .”113

[a] Federal Agencies’ Section 106 Obligations

Section 106 imposes procedural obligations on federal agencies to inventory historical properties in areas that may be affected by “undertakings” (activities subject to federal permitting, licenses, or approvals), consider the effect of the undertaking on historical properties, and consult with interested parties concerning those properties.114

In Morris County Trust for Historic Preservation v. Pierce, the U.S. Court of Appeals for the Third Circuit stated: “NHPA, like NEPA, is primarily a procedural statute, designed to ensure that Federal agencies take into account the effect of Federal or Federally-assisted programs on historic places as part of the planning process for those properties.”115 Similarly, the U.S. Courts of Appeals for the Ninth Circuit and the D.C. Circuit have stated that the NHPA is a “stop, look, and listen” statute.116

The ACHP promulgated regulations implementing this provision (Part 800).117 Unless states or federal agencies have executed agreements with the ACHP, the Part 800 regulations govern the Section 106 consultation process. The U.S. Court of Appeals for the Tenth Circuit has held that “[t]he [Section 106] process is designed to foster communication and consultation between agency officials, the [State Historic Preservation Officer (SHPO)], and other interested parties such as Indian tribes, local governments, and the general public.”118 The Part 800 regulations previously expressly granted flexibility to federal agencies “as long as the purposes of [Section 106] and these regulations are met.”119 In Attakai v. United States, however, despite acknowledging that the regulations are “designed to accommodate historic preservation concerns and the needs of federal undertakings . . . ,”120 the court applied them with little apparent flexibility.

Under the Part 800 regulations, agency officials are to provide a tribe “a reasonable opportunity to identify its concerns about historic properties, [and] advise on the identification . . . of historic properties . . . .”121 Other Part 800 provisions use 30-day time periods for consultations with state officials, including the SHPO, suggesting that a 30-day time period may be reasonable to impose on tribes.122 As discussed below, a reviewing court may decide that a longer period is appropriate. How much time and the types of communications and contacts that are reasonable and in good faith continue to plague federal officials. These questions were front and center in the DAPL controversy.

While procedural, Section 106 and its implementing regulations provide federal agencies with ample opportunity to reach agreements with tribal officials and other interested parties to provide substantive protection for eligible cultural resources. In practice and by regulation, federal officials “seek ways to avoid, minimize or mitigate the adverse effects” on cultural properties, including those important to tribes.123 Applicants for federal permits, leases, or other federal approvals should maintain good communications with involved federal officials and interested tribes to determine whether acceptable substantive agreements or mitigation measures may minimize or eliminate Native American concerns.

[b] Identifying Interested Tribes and Providing an Opportunity to Consult

At the outset of any Section 106 compliance effort, the lead federal permitting agency should identify and contact tribes with possible cultural affiliations within the area potentially impacted by a proposed project. The SHPO with jurisdiction is often a good resource for identifying relevant tribes.124 In New Mexico, for example, the SHPO’s website includes lists of tribes on a county-by-county basis identifying which tribes have expressed an interest in a particular area.125 Use of well-prepared SHPO lists may provide a basis to support a federal agency’s good-faith effort to pursue tribal consultations. Using those lists, however, does not fully insulate the consultation process from a challenge that there was an insufficient effort to identify interested tribes. One should conduct independent research to ascertain which tribes may have a cultural or historical affiliation in a particular area. In the DAPL consultation, the Corps identified a number of tribes with which it needed to consult; no allegations arose in the record suggesting that a tribe had been omitted completely from consultation efforts.

Together with the Standing Rock litigation, Pueblo of Sandia v. United States126illustrates the challenges of federal agency compliance with Section 106 requirements. The case arose from a U.S. Forest Service (USFS)-proposed road realignment and construction project in a canyon in the Sandia Mountains northeast of Albuquerque, New Mexico. The Tenth Circuit held that the USFS failed to comply with Section 106 in its consultations with the Pueblo of Sandia (Pueblo).

After USFS issued its decision to proceed, the Pueblo filed suit. According to the Tenth Circuit, which reversed the district court’s decision adverse to the Pueblo, the USFS wrongly concluded that there were no TCPs in the canyon. The record showed that Pueblo members visited the canyon to gather evergreen boughs and to harvest herbs and plants for traditional healing practices and that “[t]he canyon contain[ed] many shrines and ceremonial paths of religious and cultural significance to the Pueblo.”127 The court found that the USFS ignored this information, and failed to share it with the New Mexico SHPO or to follow up with the Pueblo to gather further information.128

Concluding that the USFS had not complied with Section 106’s “reasonable and good faith effort” requirement,129 the court held:

Because communications from the tribes indicated the existence of [TCPs] and because the [USFS] should have known that tribal customs might restrict the ready disclosure of specific information, we hold that the agency did not reasonably pursue the information necessary to evaluate the canyon’s eligibility for inclusion in the National Register.130

As in Pueblo of Sandia, federal courts will review agency compliance with Section 106 thoroughly, particularly insofar as inventory and tribal consultation requirements are concerned. Pueblo of Sandia, unfortunately, does not provide clear guidance concerning what steps should have been taken. Nonetheless, if a tribe informs a federal agency that a project area includes properties of traditional or cultural significance, then additional time needs to be invested in further consultations with that tribe.131 This is a central point of Standing Rock’s claims that the Corps did not consult sufficiently.

[2] Tribal Consultation Under the National Environmental Policy Act of 1969

Indian tribes are entitled to participate in the NEPA process, which considers potential impacts of proposed development activities on the environment, including impacts on Indian tribes, tribal lands, and other resources.136 The tribal role is consultative only. As with Section 106, federal permitting or land management agencies should invite tribes to participate early in project planning and NEPA scoping.137 When project proponents begin discussions with federal agencies concerning NEPA compliance, consultation with Indian tribes should be high on the list of first steps. This is true even for off-reservation projects, given Indian tribes’ wide-ranging relationships with lands outside current reservation boundaries stemming from their aboriginal use and occupancy patterns.

CEQ’s NEPA implementing regulations require federal agencies to invite Indian tribes to participate in the scoping process at the outset of the NEPA process, where a project may affect tribal interests.138 For on-reservation projects, the resident tribe necessarily is involved, but other tribes also may have a cultural or historical relationship to the project area. For projects on federal public lands, federal land managers should have a clear understanding of what tribes would have an interest in a proposed project or in particular areas by virtue of the land use management planning processes under the Federal Land Policy and Management Act of 1976 (FLPMA)139 for BLM, and under the National Forest Management Act of 1976 (NFMA)140 and related statutes for the USFS.141 Ideally, those agencies’ land use plans can be useful resources for project proponents to review to begin to understand the existence and scope of tribal rights and interests.142

Indian tribes are rarely referenced specifically in the CEQ NEPA implementing regulations, but those references are important. For example, with the agreement of the lead federal agency Indian tribes can become “cooperating agencies” in the NEPA process “when the effects [of a project] are on a reservation.”143 Cooperating agencies can play an important role because the lead federal agency, for example, “shall . . . [u]se the environmental analysis and proposals of cooperating agencies with jurisdiction by law or special expertise, to the maximum extent possible consistent with its responsibility as lead agency.”144 Cooperating agencies have other specified roles, including (1) participating in the scoping process; (2) at the request of the lead agency, assuming “responsibility for developing information and preparing environmental analyses” for use in the NEPA documents; and (3) providing “staff support at the lead agency’s request to enhance the [lead agency’s] interdisciplinary capability.”145

In addition, at the stage when an EIS has been prepared in draft, the lead federal agency “shall” request comments from “Indian tribes, when the effects may be on a reservation.”146 Of course, off-reservation projects can often have on-reservation impacts.

Beyond CEQ’s NEPA regulations, specific agency regulations and other materials guide those agencies’ NEPA compliance work, including tribal consultation obligations.147 In 2008, the DOI adopted NEPA-implementing regulations.148 Under these regulations, the responsible official149 “must whenever possible consult, coordinate, and cooperate with relevant State, local, and tribal governments . . . concerning the environmental effects of any Federal action within the jurisdictions or related to the interests of these entities.”150

Further, the DOI NEPA regulations provide that DOI bureaus “must coordinate, as early as feasible, with: (1) Any . . . tribal governments having jurisdiction by law or special expertise; and (2) Appropriate . . . tribal governments authorized to develop and enforce environmental standards or to manage and protect natural resources or other aspects of the human environment.”151 DOI NEPA regulations also may trigger the tribal consultation or communication under more generalized regulatory provisions requiring solicitation of comments.152

DOI regulations also require DOI bureaus to “engage . . . tribal governments . . . in the early identification of concerns, potential impacts, relevant effects of past actions and possible alternative actions” as part of the scoping process.153 And DOI bureaus must reach out specifically to tribal governments as part of a bureau’s obligations to the public regarding notices of intent to prepare an EIS or concerning the availability of a completed EIS.154

The importance of NEPA-based tribal consultation is illustrated by Navajo Nation v. U.S. Forest Service,155 where the Ninth Circuit considered the Hopi Tribe’s claim that a final EIS (FEIS) analysis of the social and cultural impacts on the Tribe of a proposed expansion of a ski area and the development of snowmaking facilities on San Francisco Peaks outside Flagstaff, Arizona, was inadequate.156 The court noted that the FEIS acknowledged that “it is difficult to be precise in the analysis of the impact of the proposed [development] on the cultural and religious systems on the Peaks, as much of the information stems from oral histories and a deep, underlying belief system of the indigenous peoples involved.”157 Despite this challenge, the court upheld USFS’s NEPA analysis because the FEIS discussed the proposed action’s effects and drew from “existing literature and extensive consultation with the affected tribes,” and “describe[d] at length the religious beliefs and practices of the Hopi and the Navajo and the ‘irretrievable impact’ the proposal would likely have on those beliefs and practices.”158 The court said that, in situations where impacts on cultural properties and tribal religious practices may arise, a reasonable attempt by an agency to describe and assess the significance of cultural properties and religious practices from the tribal and tribal member perspectives should survive a legal challenge despite the fact that assessing the impact on cultural properties and tribal religious practices is necessarily difficult.159

Of course, in consulting with tribes under NEPA, the goal should not be simply to survive a NEPA challenge. Rather, the goal should be meaningful consultation with tribal interests to identify concerns and determine whether those concerns can be addressed in some fashion as project planning proceeds. In pursuing this consultation, federal agencies and project proponents should seek to draw out tribes’ full range of concerns, recognizing that some subjects will be sensitive. Discussion of these concerns may provide opportunities for tribes, federal agencies, and project proponents to identify mitigation measures or other opportunities to help minimize project impacts.

Thus, it is incumbent on agency officials and project proponents to work together to ensure that tribes and tribal organizations have ample opportunity to participate in the NEPA process. Even if the first efforts to consult fail to result in the engagement of tribal officials, it is a good practice to “try again” so that, at a minimum, a clear administrative record reflects efforts to consult.

In January 2017, the Obama administration issued a report on improving tribal consultation and tribal involvement in federal infrastructure decisions.160 The report captured what Obama administration leaders believed to be key lessons learned and recommendations gleaned from the government-to-government consultation sessions discussed in § 1A.04[3], above. According to the report, tribal recommendations included:

The Corps should repeal its Appendix C regulations for compliance with Section 106 and discontinue the use of nationwide permits for authorization of pipeline and other large infrastructure projects impacting waters of the United States or amend the nationwide permit process to provide adequate time for tribal consultation.

Federal agencies should consult with tribes proactively when planning federal projects and require “free, prior and informed consent”161 of tribes before proceeding with any project.

Federal agencies should broaden the NEPA cumulative impacts analysis to address off-reservation impacts where such areas may include sacred sites or are subject to treaty rights.

Site avoidance should be the goal of any consultation, not mitigation. Alternatively, agencies should consult with tribes to develop and execute culturally sensitive mitigation measures.162

Tribal recommendations also included statutory amendments such as:

Amend NHPA to (1) increase ACHP’s authority over federal agencies that fail to comply with NHPA and ACHP regulations; (2) include resources such as floral, faunal, geologic, and water locations and resources deemed by tribes to be sacred or significant within the definition of “historic properties”; and (3) require tribal certification of avoidance or mitigation measures to resolve adverse effects before an agency authorizes a project.

Close CWA loopholes that allow pollution of treaty-protected waterways.

Require “mandatory avoidance” of impacts on tribal resources in every federal statute that relates to infrastructure project permitting.164

Based on the listening sessions, the Obama administration described its own key principles for consultation and related recommendations, which mainly reinforce existing policies, practices, and requirements of law and regulation.165 For example, “Initiate consultation at the earliest point possible, and provide sufficient information in the invitation”; “Make good-faith efforts to obtain a response from the Tribe and be cognizant of the limits of Tribal resources”; and “Seek to fully understand Tribal concerns, reach a consensus where possible, and when necessary, explain clearly why Tribal concerns could not be addressed.”166 To the extent federal agencies and project proponents are not engaging with tribes on these bases, they should, to be perfectly frank.

What’s Next: The Trump Administration’s Perspective and Action to Date

At a March 8, 2017, hearing of the Senate Committee on Indian Affairs following his confirmation, Secretary of the Interior Ryan Zinke stated an intention to focus effort on consulting with tribes on a government-to-government basis.167 In response to a question from New Mexico Senator Tom Udall inquiring whether the Secretary planned to pursue “important guidance and recommendations” outlined in the Obama administration’s January 2017 report, Secretary Zinke said the report is “on his desk.”168 According to the Secretary, the report’s recommendations will “no doubt” be considered as he develops his views on improving tribal consultation processes.169 He added: “On the issues of sovereignty and consultation, a challenge is that not every tribe has the same aspiration and goals, and we have to work through that in a prudent and timely fashion to get a product that is acceptable to the nations.”170

Concluding Recommendations

The swirling Standing Rock-DAPL controversy and related discussion regarding meaningful tribal consultation provides an opportunity for the federal government, working with all stakeholders, to improve these processes; promote greater understanding between tribes, federal agencies, project proponents, states, and others; and provide more certainty.

Project proponents should acknowledge that tribes are governments, and respect their sovereignty and their recognized role under applicable federal laws and policies. Just as a project proponent would seek to open lines of communication early with federal, state, and local governments and agencies whether or not they will be involved in issuing permits, project proponents should initiate communication with interested tribes early in the development timeline. Many do this already. As noted above, discussion topics may be driven in part by NEPA’s scoping requirements and Section 106 consultation requirements, but the conversation should not be limited necessarily to those subjects, and there is no harm in initiating discussions before formal agency action is taken to initiate consultation.

Consultations where agency officials have not had questions about how much consultation is enough have been few and far between. Part of the problem stems from the NHPA-derived phrase “reasonable and good faith effort.”171 The phrase is vague and defies predictable definition. Agency officials, faced with seeking to meet consultation obligations, often question how many and what types of communications are sufficient to comply with the amorphous “reasonable and good faith effort” standard when one or more tribes either do not respond at all (whether due to lack of interest or lack of resources and time) or respond initially and then do not follow up with further communication.

Some actions could help consulting parties find more certainty. First, impose a reasonable deadline for tribes, following initial, meaningful contact by a federal agency, by which to state an interest in participating in consultation. Deadlines should also be imposed on each step of a consultation process. For example, at the point an agency is seeking to identify historical properties, including TCPs, tribes should be given a reasonable period of time to identify those sites, starting from when a good description of the proposed project, including the impacted area, is provided.

Second, to facilitate early and effective consultation, tribes and project proponents should have clear assurances that information shared will be preserved as confidential and be used only for purposes of the consultation and project-related work. Tribes, project proponents, and agency officials need to be transparent to inform meaningful discussions. To effectuate a full and frank consultation process and an honest and open exchange of information, two-way statutory172 or regulatory confidentiality obligations should be clearly defined and combined perhaps with civil penalty provisions for violations.

Finally, given the myriad consultation obligations with which federal agency officials must comply (and that project proponents must monitor to ensure a legally defensible process and decision), Congress and agencies should consider the benefits of combining consultation obligations, where possible,173 into a single process that would provide for (1) government-to-government consultation; (2) consideration of the full range of concerns Native American groups may have; and (3) the inclusion of all relevant stakeholders, including particularly project proponents. This is not a novel concept; NEPA and Section 106 regulations provide a model for this combined consultation process.174

The author would like to thank Brian Bjella, Crowley Fleck; and Robin E. James and Deana M. Bennett, Modrall Sperling, for their able and thoughtful assistance in providing information, editorial assistance, and cite-checking support. Without their help, this chapter would be a very different animal. Of course, any flaws are mine. Portions of this chapter were previously published in Walter E. Stern, “Cultural Resources Management in the United States: Tribal Rights, Roles, Consultation, and Other Interests (A Developer’s Perspective),” 59 Rocky Mt. Min. L. Inst. 20A-1 (2013).

1.“Black snake” was reported in the media as a term used by the “water protectors” or DAPL protesters to refer to oil pipelines. See, e.g., Jeff Brady, “For Many Dakota Access Pipeline Protesters, the Fight Is Personal,” Nat’l Pub. Radio (Nov. 21, 2016). The term also arose in judicial proceedings later in the chronology of the controversy. See § 1A.05, infra.

39.See id. Later, the Tribe’s leadership would assert that the court’s decision was based on an incomplete record. See Standing Rock Sioux Tribe, “Setting the Record Straight: Standing Rock’s Engagement in the Dakota Access Pipeline” (Feb. 23, 2017).

44.Id. As discussed in § 1A.04(3), infra, this is a key concern of Native American groups. In some cases and as to some federal agencies, through a concept known as “small handles,” even a modest federal approval, permit, or license can trigger consultation encompassing all lands, public and private, that may be impacted, not just by the specific subject or scope of the federal involvement but for the complete project. See Joan E. Drake, “The NEPA Process: What Do We Need to Do and When?” Federal Regulation of Cultural Resources, Wildlife & Waters of the U.S. 17-1 (Rocky Mt. Min. L. Fdn. 2012).

52.See Press Release, DOJ, “Joint Statement from the Department of Justice, the Department of the Army and the Department of the Interior Regarding Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers” (Sept. 9, 2016).

57. The ACHP, which has promulgated regulations to implement Section 106 at 36 C.F.R. pt. 800, has guidance concerning the “reasonable and good faith” standard. See ACHP, “Meeting the ‘Reasonable and Good Faith’ Identification Standard in Section 106 Review,” http://www.achp.gov/docs/reasonable_good_faith_identification.pdf. The guidance leaves many questions unanswered concerning how an agency is to comply when it comes to seeking engagement and consultation with Native American groups, particularly when those groups do not respond to agency inquiries.

78.See id. at 2 (citing RFRA, 42 U.S.C. § 2000bb-1). RFRA “provides that the ‘Government shall not substantially burden a person’s exercise of religion’ unless the Government ‘demonstrates that application of the burden . . . (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.’ ” Id. (quoting 42 U.S.C. § 2000bb-1(b)).

79.Id. at 2–3 (citations omitted). Cheyenne River describes Inipi as “(a) ceremony of prayer and purification inside a sweat lodge,” which is “arguably the most important of all Lakota sacraments because Lakota people cannot perform other sacraments without first performing Inipi, a purification rite intended to cleanse one’s spirit.” Id. at 8.

110. Of course, NHPA § 106 imposes other requirements beyond consultation with Indian tribes or groups. Although some issues relating to State Historic Preservation Officer (SHPO) consultation are addressed here, other matters are beyond the scope of this chapter and are not analyzed except in a general fashion.

111. ACHP, “Consultation with Indian Tribes in the Section 106 Review Process: A Handbook,” at 16–17 (June 2012); see also Nat’l Register Bulletin No. 38, “Guidelines for Evaluating and Documenting Traditional Cultural Properties” (rev. ed. 1998) (discusses characteristics of TCPs that may be eligible for consideration in the Section 106 consultation process). Natural objects or landscapes “associated with the traditional beliefs of a Native American group about its origins, its cultural history, or the nature of the world” may be subject to NHPA consultation. Nat’l Register Bulletin No. 38, at 1. Properties falling within this category include, for example, sandbars in the Rio Grande in New Mexico used for certain Pueblo Indian rituals and the San Francisco Peaks just north of Flagstaff, Arizona, a sacred mountain of the Navajo Nation, Hopi Tribe, and others.

124. SHPOs play a key consultation role with federal agencies for projects located off-reservation. For projects on Indian reservations, a federally recognized Tribal Historic Preservation Officer (THPO) substitutes for the SHPO in the Section 106 compliance process. See 36 C.F.R. § 800.2(c)(2)(i)(A).

131. The Interior Board of Land Appeals has indicated that a single letter inquiring whether tribal consultation is desired may be sufficient to comply with the obligation to consult. See Southern Utah Wilderness Alliance, 177 IBLA 89, 95, GFS(O&G) 9(2009) (discussing a single letter that was sent to a number of tribes and no tribes responded). It does not appear, however, that Southern Utah Wilderness Alliance claimed that a single letter was insufficient compliance. The tenor of the Tenth Circuit’s decision in Pueblo of Sandia raises a question whether that court might require a greater effort given the potential sensitivity to disclosure of TCPs.

172. This recommendation should be implemented through statutory changes because enforceable waivers of tribes’ immunity from suit must be made by Congress unless a tribe is prepared to waive its immunity. See C & L Enters. v. Citizen Band Potawatomie Tribe of Okla., 532 U.S. 411, 416 (2001); Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998).

173. Of course, not all consultations are created equal or necessarily involve the same parties. See generally Aaron C. Courtney, “Combining NEPA Compliance with Other Statutes: The National Historic Preservation Act (NHPA) and the Endangered Species Act (ESA),” National Environmental PolicyAct 13-1 (Rocky Mt. Min. L. Fdn. 2010).